Qualified Immunity

A License for Outrageous Police Conduct

Qualified immunity protects cops from liability for actions that would land ordinary people in jail.

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When a police officer illegally arrests a photographer for taking pictures, can she be sued for violating the Fourth Amendment's ban on "unreasonable searches and seizures"? Yes, a federal appeals court ruled last week.

When police officers steal cash and property worth more than $225,000 while executing a search warrant, can they be sued for violating the owners' Fourth Amendment rights? No, a different federal appeals court ruled earlier this month.

Welcome to the weird world of qualified immunity, which protects government officials from liability for outrageous conduct if a court determines that the rights they allegedly violated were not "clearly established" at the time. Exactly what that means is fuzzy, but it's undeniable that qualified immunity lets cops off the hook for actions that would land ordinary people in jail.

In the false arrest case, Stephanie Branch, a police officer who works for Dallas Area Rapid Transit (DART), charged freelance photographer Avi Adelman with trespassing at a train station, even though DART policy allowed him to take pictures there. The U.S. Court of Appeals for the 5th Circuit ruled that "no reasonable officer under these circumstances would conclude that she had authority to eject a person complying with DART policies from public property—and then arrest that person for criminal trespass when he failed to depart."

In the case of the purloined property, suspects in an illegal gambling investigation alleged that Fresno, California, police officers seized $151,380 in cash and $125,000 in rare coins but reported only $50,000 of it, pocketing the rest. "Although the City Officers ought to have recognized that the alleged theft of Appellants' money and rare coins was morally wrong," the U.S. Court of Appeals for the 9th Circuit ruled, "they did not have clear notice that it violated the Fourth Amendment."

Courts in other cases have approved qualified immunity for cops who allegedly shot people without cause, sicced a dog on a man who was surrendering, tased a driver who was stopped for failing to buckle his seat belt, and ordered a 17-year-old boy to disrobe and masturbate so they could take pictures of his erect penis. Fifth Circuit Judge Don Willett, who was part of the panel that ruled against Officer Branch, observes that "qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly."

Worse, Willett noted in a 2018 case, courts often rule that a right allegedly violated by police was not "clearly established" without deciding whether their actions were unconstitutional. That approach creates a "Catch-22," he said, because "plaintiffs must produce precedent even as fewer courts are producing precedent," and "important constitutional questions go unanswered precisely because those questions are yet unanswered."

University of Chicago law professor William Baude argues that qualified immunity, which the Supreme Court invented in 1982, is "unlawful," with "shoddy foundations" in common law. Baude notes that the Court seems keen to accept cases involving qualified immunity and almost always rules in favor of police officers, encouraging lower courts to shield cops from liability under a federal law that allows people to sue them for constitutional violations.

The Court's application of qualified immunity, Justice Sonia Sotomayor observed in a 2018 dissent joined by Justice Ruth Bader Ginsburg, "tells officers that they can shoot first and think later." Justice Clarence Thomas, who does not agree with Sotomayor and Ginsburg about much else, also has urged his colleagues to reconsider the Court's approach to qualified immunity.

Based on an analysis of nearly 1,200 federal civil rights cases and a survey of about 100 lawyers practicing in this area, UCLA law professor Joanna Schwartz concludes that abolishing qualified immunity would make litigation less costly, complicated, and time-consuming for both sides. Most important, she says, it would stop courts from sending "the troubling message to government officials that they can violate the law with impunity."

© Copyright 2019 by Creators Syndicate Inc.

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  1. Qualified immunity is the ultimate “fuck you” from the government to the public.

    1. To me it’s literally one of the evils that our system of govt was created to undo. It reeks of being ruled by a King.

    2. From a libertarian perspective, qualified immunity is absolutely atrocious. But let’s go a little further. Everytime a cop arrests someone and that person turns out to be innocent, the person should be able to sue the cop for kidnapping and false imprisonment.

      1. I agree that qualified immunity is terrible, but that suggestion would make it nearly impossible to enforce the law. I might welcome less enforcement in the case of the stupid stuff, but I definitely don’t want the cops to be completely hamstrung when they’re trying to catch a murder, rapist, or mugger.

  2. “Although the City Officers ought to have recognized that the alleged theft of Appellants’ money and rare coins was morally wrong,” the U.S. Court of Appeals for the 9th Circuit ruled, “they did not have clear notice that it violated the Fourth Amendment.”

    Simply for the fact that they are state agents (the only people actually bound by the 4th Amendment) their victims (the people whose rights the amendment is designed to protect) are constrained from seeking civil remedy for acts even outside the scope of state authority? Checks out.

    1. The arcane cases make sense – you tell a cop that people should “see something, say something” and that people taking pictures of public infrastructure are terrorists and then he determines that he can hold someone taking pictures for investigation – that sounds like a perfect case for qualified immunity until case law is settled. (and in that case it should be the people who trained him and told him to go catch terrorists photographing the court building who are held accountable)

      But the one where they stole $225k? OK, that is straight-up illegal from the jump. You don’t need supreme court precident to know that you are not allowed to steal from people’s homes while executing a search warrant. That’s covered by statutes on theft.

      In those cases the court has their head straight up their rear-ends. If something is illegal, you shouldn’t have to figure out if it is also already held to be a civil rights violation.

      1. The whole idea of qualified immunity was to protect government officials from being sued for performing the duties of their office when there was a dispute as to whether they were acting reasonably in performing the duties of their office.

        It seems the Court believes “the duties of their office” include theft and murder and assault and battery and a whole host of criminal activities.

        I can’t really see where they’re wrong.

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  5. Qualified immunity is like the prima noctis of old, except prima noctis was less pervasive and generally preferable to what we have today.

  6. How does Brett Kavanaugh feel about this gross violation of stare decisis? It’s important that once having fucked up, the Court continue to fuck up in the same manner otherwise you just have the chaos of never knowing how the Court might rule. They might pull penaltaxes straight out of their asses, for example.

  7. Along with all levels of “immunity”, this notion of “implied consent” is something we should have never allowed to take root.

  8. Question: how do you balance wanting to cut back qualified immunity with not wanting people charged with crimes they didn’t realize were crimes? In fact, shouldn’t Reason be arguing for expansion of qualified immunity to the rest of us, and not just public officials?

    1. Mens rea is dead.

    2. Police are required to know the law, it’s their entire job. Also there’s nobody who doesn’t know that it’s a crime to steal $225k, or to shoot someone for no reason, or to force a minor to engage in sexual conduct.

      1. Not true. The nine whores on First Street said so.

    3. I’d be okay solving the problem either way – eliminate qualified immunity for cops or eliminate the “ignorance is no excuse” argument for us peons. Either one eliminates the double-standard.

      That said, I agree with Rhayader that the cops are literally the best people to know what the law is at any given time. It’s part of their job. I would not consider it a double-standard to hold cops to a higher standard because of the requirements of their profession.

  9. Do we really think that the individual cops should be defendants every time there is a dispute between the sums claimed by the state versus the suspects?

    The defendant should be the city. Once an allegation is proven, then I suspect there are plenty of charges that could be filed against a cop for stealing from the city.

    1. The problem is that the state refused to press charges, in this case. And since the city naturally refuses to investigate their own police dept, it’s tough to turn up any evidence through discovery in a civil suit against the city through state court. Hence, the best option was a section 1983 suit through federal court.

      I mean, I agree in general that making a federal case out of this sort of thing seems wasteful, but on the other hand if the courts are willing to offer qualified immunity even to this, we’ve got bigger problems.

  10. UnConstitutional: Section 9 Clause 8 of the US Constitution states “. No Title of Nobility shall be granted by the United States…”. What did the Founders mean by this?

    Under the British law they knew, titles of nobility had the effect of making the title-holder above the law; this was one way they emphasized the principle that no one is above the law.

    “Qualified immunity” is a Constitutional abomination.

  11. “Qualified immunity protects cops from liability for actions that would land ordinary people in jail.”

    Well, yeah.
    This way cops can commit as many crimes as they want with qualified immunity.
    Otherwise you would need a program to tell who are the cops and who are the criminals.

  12. Still waiting for proof that the cops stole anything.
    The word of those, who we know would lie to avoid the consequences of their actions, isn’t enough.

    1. Wouldn’t claiming that they had more proceeds from their illegal gambling operations be a statement against interests? Of course, you believe that cops never do wrong, just like firefighters never retire on disability for “back issues.”

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  14. Qualified Immunity sounds like a great name for a new vigilante movie with a character named Qi, 氣, who makes like Dirty Harry in Magnum Force only the bad cops are the ones who won qualified immunity in these type of kangaroo court cases.

  15. If you have any clue what you are doing in law at all, not BAR Association Statute BS, but actual law, then their immunity has no teeth. The second they exceed their jurisdiction & act outside their authority, their immunity is vaporized. And virtually every single one of them exceeds their jurisdiction on a minute by minute basis, day after day. The uneducated just don’t know it.
    “From rabble such as this, rise a people who defy kings!”

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